Why Our Broken System Sends the Wrong People to Prison

Posted on Jun 1, 2011

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On this week’s episode of Truthdig Radio in collaboration with KPFK, we investigate why so many innocent people end up in prison; find out how much various college majors really pay; look into the future of depression-chic food; and learn why Apple’s high profits threaten teachers. Plus, another special report from the cutting edge by Mr. Fish.

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Transcript:

Peter Scheer: This is Truthdig Radio, bringing you the best interviews and commentary from Truthdig.com and KPFK. I’m Peter Scheer. On this week’s show, we investigate why so many innocent people end up in prison; find out how much various college majors really pay; look into the future of depression-chic food; and learn why Apple’s high profits threaten teachers. Plus, another special report from the cutting edge by Mr. Fish.

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Peter Scheer: This is Truthdig Radio. I’m Peter Scheer, and I’m joined by Brandon Garrett, a professor of law at the University of Virginia and author of “Convicting the Innocent,” which The New York Times recently described as “a gripping contribution to the literature of [in]justice.” Welcome.

Brandon Garrett: Thanks for having me.

Peter Scheer: So just to set things up a bit, in your book you examine the cases of 250 people who were wrongly convicted since the late 1980s. They spent an average of 13 years in prison. Seventeen of them were sentenced to die, and 80 to spend the rest of their lives in prison. And it’s filled with lots of just really outrageous facts and statistics. So how did this happen? How did the system put all of these people in jail, some to die?

Brandon Garrett: So these people were all exonerated, only because DNA testing came along in the late ’80s, ’early 90s. Had it not been for DNA testing, they would have spent many more years in prison, and some of them likely would have been executed. So in some ways these people were the lucky ones, and it’s an optimistic story about errors getting corrected. But what’s so disturbing about these cases is that it wasn’t the criminal justice system, really, correcting these errors; it was the happenstance that DNA happened to be preserved in these cases.

There’ve now been more than 250 people freed by DNA in the U.S. And what I wanted to do is to go back and try to figure out what went wrong. We’ve all seen news reports about these exonerations; I wanted to go back and get the original trial records, the confession statements—police reports, if possible—to get a sense of, you know, why did jurors originally convict these innocent guys? What happened in these cases? And what I saw when I reviewed those records was that, you know, if I had been a juror on one of these cases, I think I would have convicted too. The evidence at the time that the jury saw—and almost all these cases did go to a trial—seemed powerful.

And that’s what makes these cases terrifying; the evidence was flawed, it was contaminated in all sorts of ways before trial. But what the jury saw was a case that seemed pretty open and shut, and I don’t think anyone really thought much about these cases at the time. And so it makes you wonder how many other run-of-the-mill criminal cases there are out there, since DNA testing can’t typically be done, where the same mistakes might have happened.

Peter Scheer: Well, I think that’s what’s so disturbing about—you said, was it, correct me if I’m wrong—was it 40 of these cases, the convicted had confessed to crimes that they didn’t commit, and were put away?

Brandon Garrett: Yes. And so in each chapter of my book, I talk about a different type of evidence that contributed to these convictions, and then I look back and look at the road to exoneration and what happened afterwards. But I talk right away in the book about confessions, because people just don’t think that anyone would lightly confess to a crime they didn’t commit, right. But confession evidence is incredibly powerful before a jury—for good reason. We all know that sometimes we may not tell the truth over little things, but to confess to a serious crime? A murder? And it’s typically in homicide cases where interrogations are conducted. It’s hard to imagine how that would happen.

We all understand, sure—if there’s, if police are torturing us, right, we might confess to something we didn’t do. If there was physical force at all, sure. But these cases typically don’t involve that; they use psychological techniques, and the suspect is asked all sorts of questions. And interrogations happen over many hours; they are long. Some of these people were juveniles and mentally retarded. Quite a few of them were. And maybe we could see how, OK, someone who is maybe more vulnerable might cave in to police pressure.

But even still, even given all of that, these cases are even more surprising. Because I think we might figure, OK—if we were on a jury and we saw someone who was a juvenile who’d been interrogated for 30 hours, we might wonder. Or if it was someone who was mentally retarded we might figure, OK—someone like that might cave in to the police; they may not really understand what’s going on. But what prosecutors told the jury in these cases was, look—even on the cases where there was a juvenile or someone who was mentally limited—they said: ‘You know this guy was telling the truth. Forget about the fact that he was disabled. Forget about the fact that he was a juvenile. Forget about the fact that this interrogation went on for days and days. This person gave facts that only the real killer could have known. Those details couldn’t have been known by anyone. The police kept them out of the public, and this guy could tell you what color the victim’s couch was, and how many cuts were made on the victim’s body, and how the victim was strangled—the kind of details that only the killer could have known.’ And so jurors thought, look, this is an easy case to convict; this is a true confession.

Peter Scheer: Right.

Brandon Garrett: And now we know that those details had to have come from the police, that these confessions were interrogated. But since there is no real record of what happened in the interrogation room—these were not recorded interrogations, or if they were, just the very end was recorded—there’s no way for the jury to know who said what, really. And so it’s just another example of how because we don’t document interrogations carefully in this country, except in a growing number of jurisdictions that have responded to these false-confession cases, there’s just no way for the jury to assess what happened, who said what. And “who said what” is the crucial thing when you have these claims that, oh, someone volunteered the facts that only the killer could have known. Well, did they really volunteer them? Or did the police feed those facts? And we can’t know unless there’s a recording.

Peter Scheer: Another instance of testimony that leads to sort of an open-and-shut case that you show is false, and is really disturbing, is bad forensics and bad forensics testimony. Can you jump into that?

Brandon Garrett: Sure. And I’m sure some of your listeners know there have been scandals around the country where different crime labs turn out to have poor quality control, or analysts that were misreporting results. And unfortunately, we don’t know today the scope of the problems at many of our crime labs, because they still don’t have quality control or good error-checking. And even in response to some of these wrongful convictions, there just haven’t been audits to check whether the analysts are getting it right. And most of these cases that I looked at involved forensics. And that sort of by definition—these are the cases where years later, when the forensics improved and DNA testing could be done, DNA testing was done. But at the time of their trials, basic forensics were done, often on rape kits in cases involving a sexual assault. And hairs were compared; bite prints were compared; fibers were compared; and basic A/B/O blood typing was done in these cases.

And those techniques, you’d think, would be pretty straightforward. They don’t involve a lot of fancy computers or programming, or machines or equipment like in a DNA lab today. And the boundaries of some of those disciplines are clear; everyone knows what percentage of the population has an A type or a B type or an O type, or doesn’t secrete any blood type. And yet you have these forensic analysts on the stand in these cases—in case after case, more than half the cases had some problem with the forensics. Where the analyst misstated statistics, exaggerated the forensics, made the forensics that were totally inconclusive seem like they matched the criminal defendant; basically tailoring their case to the prosecution case, rather than just explaining the science in an accurate way.

And it makes you wonder—if these guys weren’t trying to frame innocent defendants, were these forensic analysts testifying this way all the time? And what did they say in their reports? What did they say in cases that haven’t had the kind of scrutiny that these cases have had, since we now know these guys were innocent? So it really calls into question the quality control in forensics. But still more disturbing, a lot of the techniques that were used were unreliable techniques, where there were just simply errors. And they said that, you know, a dozen hairs matched the defendant; we know now that in a dozen cases … a dozen comparisons, they were wrong. And so how accurate are these techniques, if they can mismatch evidence so easily based on their own subjective conclusion that two things look alike under a microscope?

Peter Scheer: Brandon Garrett is a professor of law at the University of Virginia and author of “Convicting the Innocent.” Can you talk about racial bias? How much is this a case of—how much does this present itself in these wrongful convictions?

Brandon Garrett: Well, we certainly see a big racial disparity in these cases. Many more minorities, mostly Africans and Hispanics, were among these 250 people exonerated by DNA than in the general population people convicted of rape and murder in this country—which is, itself, skewed racially. So there’s an even bigger racial skew in these cases. And what was also really interesting was that a lot of these cases involved minority, mostly African-American defendants and white victims, in rape cases. And I don’t know what explains that. It could be that … one explanation is simply just the way that rape cases get handled in this country. Maybe prosecutors took those cases more seriously, or thought they would play better before a jury; don’t know. Another possibility is that eyewitness memory doesn’t function as well when people are making cross-racial identifications. And there have been a lot of studies on this; some of these people even tried to bring that up in court, to bring in experts to explain to the jury that, look, eyewitness memory just … people have a harder time recognizing folks of the other race; judges won’t let them do that. But it’s very disturbing, obviously, and it raises more questions about accuracy of cases outside of these handful of DNA cases that we know about. And we just don’t know what’s causing this race problem among the innocent. But it’s yet another reason why these cases should really, really disturb us.

Peter Scheer: You know, the United States throws more people in jail than any other country. And there are these problems, as you’re describing, systemic problems that go to the core of evidence and testimony. And you point out in your book—you seem to have an issue with the courts. And you would think that the courts would want to address, as you say, these well-publicized problems. But you say the Supreme Court has chosen not to hear about these issues.

Brandon Garrett: Our criminal justice system is so fragmented. In any state, there are just maybe countless police departments, different local jurisdictions in which prosecutors are elected, local judges. And so with a system that’s divided into so many parts, it’s really hard for the system to improve itself, even in response to really serious, serious miscarriages of justice. And so some states have tried to pass legislation to improve the way that lineups are done. Sometimes police departments, on a police-department-by-police-department basis, have responded and decided to videotape interrogations. But there’s no way to get change across jurisdictions unless a state passes a law—and states are reluctant to tell police and prosecutors what to do—or unless the U.S. Supreme Court does it as a matter of constitutional law. And the Supreme Court doesn’t issue constitutional rulings very often, and it hasn’t revisited many of its criminal procedure rulings for decades. And in a lot of these areas, the Supreme Court sort of thinks of eyewitness evidence, confession evidence, forensics as evidentiary issues for the state courts to handle—not questions of federal importance.

And so you have these problems that fester for years and years and years, with no one really accepting responsibility for an ongoing problem. I do think there’s some grounds for optimism; you do see … I think last year, two dozen states introduced legislation to reform the way that lineups are done. A lot of the fixes to these problems are really inexpensive. It doesn’t cost very much to just do a lineup right, and have the person administering it be double-blind and not know who the suspect is, and tell the eyewitness that. It doesn’t cost very much to just turn on the video recorder and tape an interrogation. It doesn’t cost much to have quality control in a forensic lab; you just need to have some random blind auditing to check their case work, just like any other laboratory would do. And so when you have cheap solutions and really expensive problems, you’d expect there to be just some common-sense adoption of them. But just, things happen so slowly in criminal justice. And it’s starting to happen; I hope it happens more.

Actually, this is pretty simple. As long as Prosticuting Attorneys are permitted to translate their fabulous conviction rates into political success, there will be innocent people going to prison. Pass a law that requires any person who worked as a Prosticuting Attorney to wait a minimum of seven years before they can run for public office, and this crap will stop. As it stands now, a Prosticutor’s high conviction rate is loudly proclaimed as a means to “prove” what a great Senator or Representative this cheating, lying son of a bitch would make. In reality, more than a few of these cretins have ridden an artificially inflated conviction rate all the way to Washington, while their largely poor and black victims continue to rot in a cell for something they didn’t do. This is the American Justice System; you get only as much justice as you can afford. Hell, for a few million bucks, even a man who slashed his wife and her friend to death can be acquitted by a jury. There is no real justice in this country.

Brandon Garrett’s article is important but he overlooks
two major factors in convictions of the innocent. 1) When
the suspect is convinced that he will surely be convicted,
and perhaps executed, unless he cops a plea and confesses,
in which case he may be out in 10-15 years. Secondly,
eyewitness IDs are notoriously faulty. I was one time
positively identified as a peeping tom (I was a white guy
with a beard). Luckily, when the incident happened I was
at work at a Safeway supermarket 220 miles away.

I never have cash either, and often feel embarrassed when I cannot buy a candy bar for cancer or even the local soccer team.

I haven’t tried to erase my shame though by undermining a child. (Even when I caught the same lanky teenager ‘collecting’ for two different purposes, on two different street corners, with the same slightly shabby looking candy bars.

ps For reasons that don’t need to be justified certain disasters can hold a grip on a child’s or adult’s imagination long after it may have faded for most people.